[WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

Fri Jul 2 09:04:44 PDT 2021

Very interesting. Thank you for the reply. I would be curious to know if Professor Boxx or others would analyze it differently, but my sense — under these facts — is that the easiest subset of property to exclude would be any property contributed to the trust before the marriage. Presumably it would be separate property and would have been difficult (though not impossible) to have been considered transmuted to community property under these facts.

So then, if you apply the analysis I suggested, you may have some property subject to probate that  gets ordinary treatment under the will, and thus  analysis under the omitted spouse statute, because the omitted spouse statute applies before the pour over to the trust occurs.

And then perhaps the only other subset of property is any property contributed to the trust after marriage, which could be clearly separate property (and perhaps only slightly less “protected from new spouse” than the property contributed before marriage) or could be community property (1) that was defectively titled to the trust without the new spouse’s consent or (2) with respect to which the new spouse gifted his or her community interest to the trustee spouse.

In such a case as this, it would be wonderful if the new spouse was the beneficiary of a great big IRA or brokerage account with a TOD designation, making all of this moot (presuming it would be persuasive evidence to the court that the decedent made provision for the new spouse using that non-probate asset). But I’m guessing you have no such helpful facts! :)

On your omitted minor variation, I take a pass. That sounds awful, and I will say that I would expect our courts to make a public policy exception to claw back some of that money, even if statutes did not contemplate this manner of omission and would appear to leave it in trust for the charity. The duty of a parent to provide for minor children strikes me as an even greater obligation than to provide for an (omitted) adult (spouse). But my view of it is worth less than the electronic signals transmitting this email.

All my best regards, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com
www.mckarcherlaw.com<http://www.mckarcherlaw.com>
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Jacob Menashe <jacob at hickmanmenashe.com>
Sent: Friday, July 2, 2021 8:14 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

Thank you so much. As to your question: Do you mean the decedent executed a revocable living trust and a pour over will as an unmarried person, did not refer in the pour over will to future spouses, and then married and made no changes to include the new spouse in either the will or the trust? The answer is yes, those are the facts I was thinking about. Though to put a finer point to what I am thinking about I did just respond to Professor Box and change the facts to introduce a 1 year-old omitted child.

Best,

Jacob

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Joshua McKarcher
Sent: Friday, July 2, 2021 7:39 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

Jacob,

Interesting question, but I’m not sure we have enough facts to really provide a useful analysis. Do you mean the decedent executed a revocable living trust and a pour over will as an unmarried person, did not refer in the pour over will to future spouses, and then married and made no changes to include the new spouse in either the will or the trust?

If so, then I think I would be careful to start my analysis with the will, which would seem clearly to have an omitted spouse issue requiring the analysis stipulated by the omitted spouse statue. If there is property subject to probate, then perhaps that property is the easiest to analyze, because it has never been titled to the trust. Such as if they bought a home after marriage and titled it to them as husband and wife, without naming the trust.

I may be wrong, but it seems that step in the analysis would be important before analyzing the property that was titled to trust during the decedent’s lifetime. Then, it seems the analysis might turn to whether it was titled to the trust before marriage or after, and especially perhaps any evidence that the new spouse was aware of the trust. Imagine a home purchased in the name of the trust for which a lender or title company (or the trustee spouse) obtained a quitclaim deed from the new spouse to the trustee spouse. Consider also that property in Trust is not subject to intestacy and so you may have a hurdle to climb to pull it within the omitted spouse statute’s formula.

So, even though I’ve never been hit with this  issue, I think just applying the omitted spouse statute on its own terms would make it important to start with the will and not let the trust or an IRA or anything else derail that initial “step one” analysis, especially given what I will call the “nuance” or “multi-factor test” provided under the omitted spouse statute.

Interesting issue, and would be interested in hearing what you learn or how your case comes out.

Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
www.mckarcherlaw.com<http://www.mckarcherlaw.com>
________________________________
From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> on behalf of Jacob Menashe <jacob at hickmanmenashe.com<mailto:jacob at hickmanmenashe.com>>
Sent: Friday, July 2, 2021 6:45:53 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

Hi David,

That’s super helpful and frankly the RCW I was looking for. (I’ll note for anyone reading that I’m sure David meant to cite RCW 11.97.020, not 090.) I’m not sure about the application to the omitted spouse issue but you definitely gave me a start. Thank you!

Has anyone out there applied 11.97.020 to 11.12.095? So far I haven’t found any cases.

Best,

Jacob

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of David Moe
Sent: Thursday, July 1, 2021 2:44 PM
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Subject: Re: [WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

RCW 11.97.090 (?) Trust term interpretation and property disposition—Rules of construction

David Moe Attorney, P.S.

Telephone:  425-432-1277

Fax:  425-432-1280

23745 225th Way SE, Suite 108

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Jacob Menashe
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Subject: [WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

I am struggling to answer a question I thought I knew or could find the answer to but I am falling short: Does the omitted spouse statute, RCW 11.12.095, apply when there’s a revocable living trust? I’m going to keep looking but I figured I’d throw out the question and see what responses I get.

Thanks!

Jacob

Jacob H. Menashe

Hickman Menashe, PS

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